RAMLAL Vs. BACHCHA SINGH

JUDGEMENT

(1.) This was a suit for foreclosure upon an unregistered mortgage made by the respondent. Ram Prasad, in favour of the respondent, Bachcha Singh, in March 1896. The mortgage was without possession. The mortgaged property-was brought to sale in 1905, in execution of a simple money decree passed against the mortgagor, and was purchased by the appellant, Ganga Dyal, who entered into possession. In July 1910, Ganga Dyal sold the property to the appellants. Ram Lal and Bindra. In September 1910, Ram Lal and Bindra re-sold half of the property to Ganga Dyal. The appellants resisted the suit on the ground that they were purchasers for value without notice of the unregistered mortgage, and, therefore, the registered deed in their favour must take effect against the unregistered deed. The Munsif upheld this defence and dismissed the suit ; but his decision was reversed by the District Judge.

(2.) According to the decisions in Sobhagchand v. Bhaichand 6 B. 193 and Ramaraja v. Arunachala 7 M. 248 which have been approved in several later cases, the property was bound by the unregistered mortgage in the hands of Ganga Dyal as auction-purchaser, whether he had notice of the mortgage or not, because he acquired by his purchase only the right, title and interest of the mortgagor. The District Judge has held that Ram Lal and Bindra also are bound by the mortgage because Ganga Dyal could not place his transferees in a better position than he was himself, and that it followed that Ganga Dyal, under his purchase from Ram Lal and Bindra, was in the same position. Here the learned Judge has, I think, fallen into an error. The unregistered mortgage was binding upon Ganga Dyal as auction-purchaser because there was no conflict between his purchase and the mortgage, and Section 50 of the Registration Act 1877, did not affect the case. But there is a direct conflict between the registered sale-deed in favour of Ram Lal and Bindra and the unregistered mortgage-deed in favour of the appellant, and according to Section 50 of the Registration Act, the registered sale- deed must prevail. It was held as long ago as 1875, that in order to attract the provisions of Section 50 of the Registration Act of 1866 (which, as far as the present case is concerned, is in the same terms as Section 50 of the Act of 1877), it is not necessary that the executant of the two conflicting deeds shall be the same person : see Makandas Kalidas v. Shankardas Haribhai 12 B.H.C.R. 241 ; the faots of which were very like those of the present case. As the High Court observed in that case :--?It cannot be denied that bona fide purchasers from the original owner s heirs or assignees require protection against secret or concealed conveyances and charges no less than purchasers from the orginal owner himself and that, therefore, their case is as much within the mischief that the Act was intended to remedy."

(3.) It has no doubt been held that Section 50 of the Registration Act does not operate to give priority to a person who takes with notice of a prior unregistered deed, bat it has never been suggested that the appellants had notice of the unregistered deed in favour of Bachcha Singh. It was for the latter to plead and prove that the appellants had notice; but they never attempted to do so.